Docket: CACV2479 v. CACV2480, 2014 SKCA 100

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 100 Date: 2014-09-22 Between: Docket: CACV2479 and CACV2480 Regan Bittner (Respondent) Appellant - and – Duane Wutzke (Petitioner) Respondent Coram: Jackson, Ottenbreit and Caldwell JJ.A. Counsel: Marcel Simonot, Q.C. for the appellant Neil Raas for the respondent Appeal: From: DIV No. 08184 of 2011, J.C. of Prince Albert Heard: September 22, 2014 Disposition: Dismissed (orally) Written Reasons: September 24, 2014 By: The Honourable Mr. Justice Ottenbreit

In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell Ottenbreit J.A. (orally) [ 1 ] These reasons concern two appeals: CACV2479 and CACV2480. Regan Bittner is the appellant and Duane Wutzke is the respondent in each case. [ 2 ] The first appeal seeks to set aside the Chambers decision of Smith J. dated September 24, 2013 wherein he dismissed Ms. Bittner’s application to have Mr. Wutzke found in contempt of the order of Maher J. dated December 11, 2012 and for the payment of expenses incurred by Ms.

Bittner for two round trips from Fort McMurray, Alberta to Debden, Saskatchewan respecting failed attempts to have access to her son. [ 3 ] The Chambers judge found as a fact that there had been a miscommunication between the parties as to access arrangements. There is no basis to say he erred on that point given the evidence as a whole before him. The level of proof required to sustain a finding of contempt is quasi criminal – beyond a reasonable doubt. While the Chambers judge found Mr.

Wutzke at fault for the miscommunication, he did not find his behaviour wilful so as to rise to the level for a finding of contempt. [ 4 ] Regarding the expenses claimed, there was no evidence of the specific expenses claimed before the Chambers judge upon which he could make a decision.

The amounts claimed are a new matter for which there is no evidentiary base. [ 5 ] Whether the findings of the Chambers judge are classified as an error of law or an error in exercising his discretion on either applicable standard, there is no reason for this Court to intervene. [ 6 ] This appeal is accordingly dismissed. [ 7 ] I deal next with the appeal of the dismissal by Smith J. dated September 24, 2013 of Ms. Bittner’s application to vary the interim child maintenance order of Konkin J. dated February 12, 2013 under the Divorce Act , RSC 1985, c 3 (2 nd supp).

As an initial observation, the general approach of this Court is to discourage appeals of this nature and urge the parties to move to pre-trial conference or trial as the case may be. [ 8 ] The evidence before the Chambers judge was that Ms. Bittner continued to be a homemaker although she was receiving $15,000 per year from her present husband’s corporation. As was the case before Konkin J. she was not employed outside of the home. On the whole, the circumstances which were the basis for Konkin J.’s order had not changed.

There was no basis for Smith J. to set aside the imputation of income to her. [ 9 ] Based on the applicable standard of review, there is no basis to set the decision of Smith J. aside. The appeal is therefore dismissed. [ 10 ] Costs are fixed in the amount of $3,000 in total for both appeals.